Bush poised to accept 2 curbs on his authority

MICHAEL HEDGES, Copyright 2006 Houston Chronicle Washington Bureau

Published 5:30 am, Friday, July 14, 2006

WASHINGTON - In compromises crafted by the Senate, the White House was poised Thursday to change the way the United States prosecutes prisoners from the war on terror and to require court review of government eavesdropping on terror suspects.

The twin developments culminated efforts by legislators to check what critics in both parties have called the overaggressive use of presidential authority since the Sept. 11, 2001, attacks on the United States.

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Senate Judiciary Committee Chairman Arlen Specter said Thursday that President Bush has agreed to sign a bill authorizing the Foreign Intelligence Surveillance Court to review a program under which the National Security Agency has been monitoring international phone calls and e-mails. The eavesdropping occurs when a person in the United States and someone overseas are suspected of discussing terrorist activity.

Also Thursday, Republican Sens. John Warner of Virginia and John McCain of Arizona said they believed they had an understanding with the White House that trials for detainees at Guantanamo, Cuba would proceed under established military procedures, jettisoning the administration's plan to use wartime "commissions" with less restrictive rules of evidence.

"There is no doubt that this marks a significant change in tactics by the Bush administration, if not a change in viewpoint," said Norman Ornstein, an analyst with the American Enterprise Institute, a conservative-leaning Washington think tank.

Blueprint for the future?

The agreements on eavesdropping and trying terror suspects are subject to approval by the Senate and the House. But the tentative agreements marked a breakthrough in easing the tensions that have roiled Washington for six months.

"What is happening today is that the president and Congress are coming together to codify the capacity for future presidents to take action to protect our country," White House spokesman Dana Perino said of the shift on the eavesdropping programs.

Earlier this week, in the wake of a U.S. Supreme Court decision on how to bring war prisoners to justice, the Bush administration also said it would apply the Geneva Conventions, which provide for humane treatment of captives.

Previously the administration said the international pacts did not apply to "enemy combatants" in a global war. The White House also had said it had constitutional authority to conduct the eavesdropping program without court oversight.

The compromise on the eavesdropping program recognizes the president's authority to make wartime decisions but also acknowledges "that the president does not have a blank check," Specter said. "(I)t is a balancing, a weighing of the interests in security to fight terrorism with the privacy interests involved."

The Foreign Intelligence Surveillance Court would be allowed to expand emergency warrants to seven days from three, giving intelligence officials more time to monitor calls while preparing arguments for a warrant allowing a longer wiretap. The agreement also would allow officials other than the U.S. attorney general and his top deputy to approve a warrant application to the FISA court. And it would permit roving wiretaps — a warrant that could follow a caller from phone to phone instead of covering a fixed line.

"My understanding from the president is that the legislation could be very helpful," Attorney General Alberto Gonzales said Thursday. "It would continue to allow the president to gather up information to protect the country."

White House backs down

But in gaining those concessions, the White House backed off a position it had clung to adamantly during hearings this year — that a president had nearly limitless authority under the Constitution to order surveillance in wartime without review by courts or approval by Congress.

Warner and McCain said they were assured by the the White House that detainees would be tried under a court modeled on the U.S. military code of justice.

Abandoning trials by "military commissions" marked another shift that the administration had long resisted.

"There certainly will have to be changes made from the standard rubric (of military law)" McCain, a prisoner during the Vietnam War, said. But he stressed the code would be the foundation for detainee trials.

"We've had some very good conversations on the subject of how we move forward," presidential security adviser Stephen Hadley said about the military trials at a Thursday news conference in Stralsund, Germany, where he was accompanying Bush. "Where it's going to come out is still to be worked out."

'Perplexed' by testimony

Two days earlier, Bush aides testified in congressional hearings that the lawmakers should simply ratify trials by military commissions. The Supreme Court recently ruled that the tribunals set up by the administration were unconstitutional in part because they had not been sanctioned by Congress.

Warner said he was "somewhat perplexed" by the testimony from the Bush aides, considering that he and McCain thought they had already struck a compromise with Hadley.

"But in due course, we'll work that out," he said.

Ornstein said the administration probably gave ground to Congress because it felt politically weakened by the unpopular war in Iraq, wanted to avoid fights with GOP lawmakers in an election year and needed to devote more attention to issues that have emerged from Iran and North Korea.

Brian Darling, a political analyst with the conservative Heritage Foundation, said the Bush administration and Congress were grappling with questions that the United States has not confronted in the past.

"I think the White House is yielding some of the power that it does have under the Constitution during time of war, apparently because they are confident with these agreements," he said. "We are in a unique time in our history, and the balance of power on issues raised during a war on terror is being struck for the first time."